Angel v. State

• Decision Date: 23 May 1985
• Docket Number: No. C14-84-245-CR,C14-84-245-CR
• Citation: 694 S.W.2d 164
• Parties: Silas Owendoff ANGEL, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 164

694 S.W.2d 164

Silas Owendoff ANGEL, Appellant, v. The STATE of Texas, Appellee.

No. C14-84-245-CR.

Court of Appeals of Texas Houston (14th Dist.).

May 23, 1985.

Rehearing Denied July 5, 1985.

Russell C. Busby, Austin, for appellant.

John B. Holmes, Dist. Atty., Lori B. Milberg, Asst. Dist. Atty., Houston, for appellee.

Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

Silas Angel appeals a jury conviction for theft of property valued between $200 and $10,000. The jury assessed punishment at five years' confinement. We find no reversible error in the 11 grounds presented for our review and affirm the trial court's judgment.

Appellant first challenges the sufficiency of the evidence to sustain his conviction; we will therefore review the relevant facts. After midnight on August 29, 1983, Tomball Police Officer Daniel Toombs was on routine patrol when he noticed several pieces of heavy equipment used for road repair parked alongside the highway. Shortly after 4:00 a.m., Officer Toombs saw the appellant driving a piece of heavy equipment with no headlights several yards from a site where he had previously seen the heavy equipment parked. Officer Toombs stopped the appellant to investigate, obtained his driver's license number, directed him to drive on the shoulder of the road because the vehicle had no lights, and then allowed the appellant to proceed. Shortly thereafter, Officer Toombs learned of two outstanding traffic warrants on appellant and stopped him again. During this second detention, the officer noticed the vehicle had apparently been hot-wired. He arrested appellant on suspicion of theft and for the two traffic warrants, and he arranged for the vehicle to be photographed and towed into the police storage yard.

A few hours after the arrest, Tomball Police Lieutenant Robert Creel learned that the same type of vehicle recovered from the appellant had been stolen from the paving company repairing the highway near the site of the arrest. The owner of the paving company, B.W. Smith, sent a foreman to the police storage yard to identify the vehicle, although this foreman did not testify at trial. Officer Toombs testified that the recovered vehicle had the identification number CIN1002331TX weld-beaded on the frame. Mr. Smith testified (1) that this identification number is one assigned specifically to his company by a Texas crime-fighting organization, (2) that he does not ordinarily remove this number when he sells his equipment, and (3) that he could not tell solely from police photographs of the recovered equipment whether the vehicle was actually the one missing from the paving site. Furthermore, Mr. Smith testified that his vehicle's serial number was 271005, while Officer Toombs testified that he found the number 9410-35336T on the equipment in addition to number CIN1002331TX.

Appellant contends the foregoing evidence is insufficient to prove the vehicle driven by the appellant was the exact vehicle missing from among Mr. Smith's equipment alongside the highway. As support for his position, appellant cites York v. State, 511 S.W.2d 517 (Tex.Crim.App.1974). In York, the defendant was convicted of stealing a barricade marker with a blinking light. However, the Court of Criminal Appeals reversed the conviction for insufficient evidence because the State did not establish that the barricade marker found in appellant's possession was the property of the complaining witness and that it was therefore the same barricade marker alleged in the criminal information to have been stolen. Id. at 519. Similarly, appellant contends the State failed to prove that the vehicle recovered belonged to Mr. Smith. We disagree.

The case before us is based on circumstantial evidence since no one actually witnessed the theft of Mr. Smith's equipment at the exact instant the vehicle was removed from the paving site. The standard for reviewing the sufficiency of both direct and circumstantial evidence is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984) (en banc). In applying this standard to circumstantial evidence cases, the courts employ a process of elimination to determine whether the evidence excludes all other reasonable hypotheses of the defendant's conduct. Denby v. State, 654 S.W.2d 457, 464 (Tex.Crim.App.1983).

The appellant was found driving the heavy equipment at approximately 4:00 a.m. only a few yards from the location of Mr. Smith's other equipment. Mr. Smith testified that a vehicle of the exact description as the one recovered from appellant was discovered missing from that site a few hours after appellant's arrest. Officer Toombs identified the number CIN1002331TX as being weld-beaded onto the vehicle recovered from the appellant. Mr. Smith testified that this identification number is specifically assigned to his company. We believe this chain of testimony is sufficient to identify the recovered vehicle as the one stolen from Mr. Smith and thus sufficient to prove the offense charged. The situation before us differs from that in York, 511 S.W.2d at 517, in that here the recovered property displayed an identification number specifically assigned to Mr. Smith's company, thus providing a very strong indication of ownership.

Appellant claims the evidence is insufficient because (1) Mr. Smith does not remove the weld-beaded identification number from his equipment upon selling it, (2) there appeared to be some discrepancy as to the other numbers on the vehicle as described by Officer Toombs and Mr. Smith, and (3) no one who identified the vehicle at the police storage yard testified at trial. While it is true that the evidence in this case could have been more fully developed, we nevertheless find it sufficient to rule out all other reasonable hypotheses of appellant's conduct. Appellant seems to imply that it is an equally reasonable hypothesis that at 4:00 a.m. a few yards from the site of Mr. Smith's missing equipment, appellant just happened to be driving an identical vehicle previously owned by Mr. Smith and therefore having the same weld-beaded identification number. This hypothesis stretches the imagination a bit too far. The jury, as the exclusive judge of the facts, the credibility of the witnesses, and the weight of the testimony, heard sufficient evidence to convict appellant of theft. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). Any discrepancies in the testimony were presumably noted by the jury and resolved through their deliberations. Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974). Accordingly, we overrule ground of error one.

In ground of error two, appellant asserts the trial court erred in refusing to grant his motion for instructed verdict at the end of the State's case-in-chief. However, appellant waived his right to assert this ground of error on appeal when he called witnesses and presented his own case-in-chief after the trial court denied his motion for instructed verdict. Kuykendall v. State, 609 S.W.2d 791, 794 (Tex.Crim.App.1980). Therefore, we overrule appellant's second ground of error.

Appellant next contends the trial court erred in allowing the State to use an inadmissible penitentiary packet during the punishment phase of the trial. Although the trial judge initially overruled defense counsel's objections to the penitentiary packet, the judge shortly thereafter changed his mind and sustained the objections, instructing the jury not to consider any prior convictions of the defendant in assessing punishment. In further discussions with defense counsel as to the proper remedy for the State's introduction of this inadmissible material, the judge and the defense attorney agreed that the court would instruct the jury to return a finding of "not true" to the enhancement allegation. The judge so instructed the jury, and defense counsel did not move for a mistrial. Appellant now maintains that the instruction was insufficient to cure the error.

The general rule concerning inadmissible evidence is that such error is usually cured by the court's instruction to disregard "except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds." Thompson v. State, 612 S.W.2d 925, 928 (Tex.Crim.App.1981). We find the trial court's strong admonition to the jury to disregard the penitentiary packet and its instruction to return the finding of "not true" to the enhancement allegation sufficient to cure the error. Furthermore, since defense counsel did not ask for a mistrial, he received all the relief he requested at trial. Stoner v. State, 585 S.W.2d 750, 755 (Tex.Crim.App.1979); Kennedy v. State, 520 S.W.2d 776, 778 (Tex.Crim.App.1975). Therefore, we overrule the fourth ground of error.

We next entertain appellant's complaint of trial court error in submitting to the jury over appellant's objection a lesser-included offense not in the indictment. Appellant contends that inclusion of the lesser offense on the State's motion or on the court's own motion significantly reduced the State's burden of proof by allowing it to obtain a conviction without proving every element of the specific offense named in the indictment beyond a reasonable doubt. We disagree.

The indictment in this case alleged theft of property valued over $10,000. The State's witness, Mr. Smith, testified that the property was worth approximately $15,000. The defense witnesses testified the property was worth considerably less than $10,000 but certainly more than $200. Thus, the court submitted both offenses to the...